Employment tribunal fees may be resurrected, MoJ confirms

The Ministry of Justice has confirmed it may reintroduce fees for employment tribunal claims, insisting it can find a balance that helps fund the court system while being ‘proportionate and progressive’.

Richard Heaton, permanent secretary at the MoJ, said that although nothing is set in stone he is confident a fee system can be found that will ensure access to justice.

The government was roundly criticised for its tribunal fee structure before a landmark 2017 Supreme Court judgment declared the fee scheme unlawful.

Tribunal fees were introduced in July 2013 by then lord chancellor Chris Grayling. They started at around £160, and increased to between £230 and £950 for further hearings. In certain circumstances claimants had to pay up to £1,200.

Answering questions from the House of Commons Justice Committee, Heaton noted that the judgment did not completely outlaw the concept of fees. ‘We have taken time over this,’ he said. ‘We have to get the fee level right. I can see a scheme working that is both progressive and allows people out of paying fees where they can’t afford to.’

He added that there are no immediate plans to reintroduce a fee scheme. ‘What we are not trying to do is squeeze as much income as we can out of every litigant,’ he insisted.

The MoJ is ‘doing all it can’ to ensure that everyone who paid a fee is refunded. In 2017/2018 refund payments totalled £7.1m. Since the end of the financial year [April 2018] the MoJ has, on a cumulative basis, made refunds totalling £15.8m.

Asked whether the probate fee charges, announced via a written statement this week, were in line with the MoJ’s focus on ensuring access to justice, Heaton said he was confident the new scale is ‘proportionate, progressive and within our powers’.

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Fees are difficult because by virtue of the area of law there is a near certainty of financially insecure circumstances being present before a claimant issues their claim. The ET should be viewed as completely different to other courts because firstly it is a distress purchase and secondly any fee at all can have a dramatic effect on a persons assessment of bringing their claim. If someone is owed £250 wages (which represents 5 weeks' food money; yes it really does), should they have to pay £25 to lodge their claim? (that's 3.5 days food).
These are real circumstances that some people in the rarefied heights are entirely oblivious to.
A prospective client was in my office yesterday explaining her circumstances, several terrible personal events followed by some sexual harassment and a dismissal. How much should she pay? She explained she wanted to kill herself and after calming her and assuring her we could handle her case, I had to advise her to go straight to her doctor. Sexual assault at work, serious racism, these are everyday occurrences and it is easy to view employment claims as a 'try on' but these things are happening every single day.
In any event research shows that fees have the opposite effect of discouraging vexatious claims. Setting a suitable fee level is an absolute minefield and has to suit the top earners and the zero hours worker who is owed £100.
Good luck with getting it right is all I can say.

I am a claimant who has had his case delayed two times, resulting in the case allegedly (no confirmed date yet) being held over two years after the actions that caused the legal case in the first place. If there were fees would I be able to get a refund and possible compensation from the Court system for the delays.

On the other point, only the staggeringly myopic would suggest re-introducing fees. Ah, but you can get insurance to cover your costs or borrow off a friend. Companies are, in the main very clever at breaking employment law when they believe the member of staff is not in a fit state or able to understand undertaking legal action. Are members of the legal profession actually suggesting victimising, those fighting cancer (like myself) or other medical ailments, those that cannot read/write, or those on a low wage, who's friends are also on a low wage as well!! This is just plain sick.

For Claimants, this proposal is really just adding insult to injury! And has the employer-facing Tory Government not learnt its lesson from last year's Supreme Court Judgment or are they that terrified by the prospect of a no-deal Brexit?

Put simply, ET claims are now very hard to win anyway, particularly Unfair Dismissal & Discrimination cases. Equally, it is totally unfair that Claimants who have lost their jobs and probably are suffering financially as well as having health issues as a consequences, face the constant threat of Cost Orders from Respondents' lawyers too. So it is therefore, ludicrous to suggest that the Tribunals are sympathetic to Claimants when quite the opposite is true.

Further, speaking to a top Employment Law Barrister recently, they confirmed that in terms of ET claims, it is much easier to knock a case down than to try and build it up. Doesn't this all just remind you of 'It's a Knockout' back in the 1970s & 80s with the various teams/countries trying to carry buckets of water and constantly falling over?

Mark Nolan: fine, if claimants are required to insure the risk for the full amount of the defendant's costs, assessed if no agreed, if they lose: upfront, the claim not to progress until they lodge the insurance certificate. An order for costs agaisnt a claimant wh has not the means to pay is worthless.

Surely it would be far preferable to reconcile it with the civil courts costs regime (albeit softer than automatic costs orders,) whereby costs do follow the event, the employer can recover them in circumstances where the claims are unreasonable/vexatious/abusive and local employment lawyers association members can participate in staffing free duty solicitor sessions for claimants facing the risk. Fees have been a bar to justice. The focus should be on the legitimate claims, not the hopeless/nuisance ones which the Tribunal has already been clogged up with, again.

If employee A alleges actions by employee B for which employer E is vicariously liable it is going to cost Employer E no matter how justified the claim. I might not be too troubled by a history of one claim but I would by a regular claimant.

13:50 What about a claimant with a history of lodging one claim? Suppose that claim was fully justified. As a prospective employer you'd be reducing the talent pool and potentially passing over on a strong application. Blacklisting is an insidious and in many cases unlawful thing.

Well, 13:21, would you be happy to recruit someone with a history of lodging claims if you could take someone with just as good a c.v. and no such history? Do you want the irrecoverable costs of meeting a claim, not to mention the stresses they cause in the work environment?

A sensible fee - not a full recovery model - would still allow justice to be done.

What is essential is a Part 36/Calderbank regime: but with no discretion so that if you fail to beat the offer, you pay. And Claimants who disclose the offer to the tribunal should pay the costs thrown away before the claim is listed again - no ifs, no buts, no exceptions.

Won't happen if labour get in. Even if not, this will result in much resistance, whatever the fee level. Of course they're taking their time: 1) there's little time to devote to government other than Brexit; 2) the Supreme Court judgment gave very little room for manouvre for any future fees scheme. Not that it can't be done, just that it would be very difficult. Amongst other things fees would have to be very low to not amount to a barrier to access to justice and at such low levels, the cost: economic/revenue benefit wouldn't be there.

Agreed with 12:18, the 2 year qualifying period is plainly unfair. But so is public availability of Claimants' names on the ET online register. Once lodged, they cannot in most cases avoid their names going online whether the case settles and is dismissed upon withdrawal or is subject to a merits judgment. So not good if you're worried employers may check your name when recruiting.

Current issues of working in Employment Law:
1. While there is a strict three month time limit for Claimant's to make a claim and a hearing is usually held if the Claimant is one day late, Respondents are free to disregard the Tribunal's order and apply for extensions after the fact.

2. The current Employment Tribunal is completely under staffed and under prepared to deal with basic questions like: can this application be dealt with in an emergency as we have a hearing coming up? and it has been three months since I submitted the ET1, telling me the application is in a pile does not help me!

3. Generally there is a Respondent bias (confirmed by a Central London Employment Tribunal Judge) as they feel that Respondents should have more time (despite ACAS etc).

4. Two years to gain employment rights is outrageous. 12 months is sufficient.

I entirely expect that, if they are reintroduced, the following will happen;
- It will be rushed.
- The planning for introducing and facilitating the collection of fees will be so poorly worked out that it will cost 3x any initial predictions.
- Once implemented, the systems & processes used (provided by the lowest bidder) will fail, increasing the cost further.
- Not nearly as much money will be made by reintroducing the fees, and a loss will be incurred instead of a profit, and the fees will increase.
- Tax payers will be left clueless, being told my automated court telephony systems there’s no point in calling about the fees because they can’t offer any advice.
- People will be left with less access to justice.
- (Some) Employers will cotton on to this and treat their staff with less care.
- The person(s) who went ahead with it will continue to listen to the miniature, ethereal version of themselves that sit on their shoulders, and not any of the millions of people who have been trying to warn them about all of the above for years.

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